United States District Court, D. Maryland
Xinis United States District Judge
before the Court is Defendants Tom L. Scholl’s and
Keystone Coal Co.’s (“Keystone”) motion to
dismiss. ECF No. 27. The Court finds no hearing is necessary.
See Loc. R. 105.6. For the following reasons, the
Court DENIES the motion to dismiss.
action arises from an ongoing business relationship between
parties who engaged in a series of discrete
commodities-related contracts which, according to Plaintiffs,
generated $14, 600, 000 in debts from four separate
transactions that occurred between 1995 and 2012. ECF No. 3
¶¶ 44, 46-63, 71, 79, 86. The first deal concerns a
1995 exclusive agreement brokered with P.T. Adaro Indonesia
(“Adaro”) to sell Indonesian steam coal to Korea
Electric Power Corporation (“KEPCO”).
Id. ¶ 8. Defendants hired Plaintiffs to
negotiate and enter into the coal sales contract with Adaro
on Defendants’ behalf. Id. ¶¶ 4, 9.
Defendants agreed to pay Plaintiffs two-thirds of the profits
from Adaro’s annual coal sales to KEPCO. Id.
¶ 10. Based on ensuing negotiations, Plaintiffs secured
on Defendants’ behalf a Coal Sales Agreement between
Adaro and KEPCO. From May 1995 to early 2003, Defendants paid
Plaintiffs two-thirds of the profits from the annual sale of
at least two million tons of steam coal from Adaro to KEPCO.
Id. ¶ 50.
in early 2003, both parties learned that Adaro was dealing
directly with KEPCO in violation of the Coal Sales Agreement.
ECF No. 3 ¶ 13. Defendants and Plaintiffs decided to
approach Adaro to reach resolution regarding this
circumvention and agreed that Plaintiffs would negotiate the
Adaro matter in exchange for receiving a percentage of any
settlement proceeds. Plaintiffs initiated the settlement
discussions with Adaro, and at some point, Scholl took over
negotiations to reach a specific settlement amount.
Id. at ¶ 15. Scholl concluded the settlement
discussions with Adaro and represented to Plaintiffs that the
claim had been settled for $9 million. Id.
¶¶ 16, 22. In fact, unbeknownst to Plaintiffs,
Scholl settled with Adaro for twelve million dollars.
Id. ¶¶ 17, 56. Plaintiffs only learned in
mid-2017 from a former Keystone employee about Scholl’s
deception. Id. ¶ 22.
second deal occurred in 2010. Scholl sought Plaintiffs’
assistance in securing a sales agreement with JFE Steel
Corporation. Id. ¶ 81. Plaintiffs, once again
acting on Defendants’ behalf and pursuant to a written
agreement, negotiated the sale of Japanese steel from JFE to
POSCO (formerly known as Pohang Iron and Steel Company) in
Phohang, South Korea. Id. As compensation for the
deal, Defendants agreed to pay Plaintiffs approximately $7.00
per ton of JFE steel sold to POSCO. Id. Plaintiffs
contend that they are owed $2.4 million on this deal.
Id. ¶ 83, 84, 86.
in July 2012, Plaintiff Christopher Chung assisted Scholl in
securing a $35, 000, 000 business loan from ING. Id.
¶ 66. In exchange for Christopher securing the loan,
Scholl agreed to pay Christopher $3, 000, 000 as payment.
Id. ¶¶ 67-68. Despite having secured the
loan for Scholl, Chung never received the agreed-upon
compensation. Id. ¶ 83, 84, 86.
the Parties agreed Plaintiffs would establish for
Defendants’ benefit an office in Seoul, Korea in
exchange for $1.2 million. Id. ¶ 76. Although
Plaintiffs fulfilled their obligations under this agreement,
they have not yet been compensated. Id. ¶¶
15, 2013, during a meeting between the Chungs and Scholl,
Scholl admitted he owed Plaintiffs payment from the four
above-described transactions and expressed his intent to
reimburse Plaintiffs. Id. ¶ 24. The parties
also memorialized, via written agreement dated July 15, 2013
(“2013 Agreement), the sums that Defendants owed
Plaintiffs. Id.; ECF No. 3, Ex. 2. Scholl personally
executed the 2013 Agreement. ECF No. 3, Ex. 2. Defendants,
however, never repaid the monies owed.
between April 1, 2017 and August 20, 2018, Scholl conveyed to
Plaintiffs on several occasions his plan to pay the debts
outlined in the 2013 Agreement. ECF No. 3 ¶¶
24– 31. But once again, Scholl reneged on his promises,
prompting Plaintiffs to file suit on March 27, 2019 in
Montgomery County Circuit Court. ECF No. 3 at 1. The
Defendants noted timely removal and now move to dismiss all
claims as barred by limitations. ECF No. 27.
Standard of Review
motion to dismiss brought pursuant to Rule 12(b)(6) tests the
sufficiency of the complaint. Presley v. City of
Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). The
Court accepts “the well-pled allegations of the
complaint as true, ” and construes all facts and
reasonable inferences most favorably to the plaintiff.
See Ibarra v. United States, 120 F.3d 472, 474 (4th
Cir. 1997). To survive a motion to dismiss, a
complaint’s factual allegations “must be enough
to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
“‘[N]aked assertions’ of wrongdoing
necessitate some ‘factual enhancement’ within the
complaint to cross ‘the line between possibility and
plausibility of entitlement to relief.’”
Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir.
2009) (quoting Twombly, 550 U.S. at 557).
“[C]onclusory statements or ‘a formulaic
recitation of the elements of a cause of action will not
[suffice].’” EEOC v. Performance Food Grp.,
Inc., 16 F.Supp. 3d 584, 588 (D. Md. 2014) (quoting
Twombly, 550 U.S. at 555).
limitations usually constitutes an affirmative defense, where
the bar to suit “is apparent on the face of the
complaint, ” the complaint does not sufficiently
“state a claim upon which relief can be granted.”
G & H Clearing & Landscaping v. Whitworth,
66 Md.App. 348, 354 (1986). In that circumstance, the Court
may dismiss the claim on limitations grounds. See Brooks
v. City of Winston–Salem, N.C. , 85 F.3d 178, 181
(4th Cir. 1996) (“[D]ismissal nevertheless is
appropriate when the face of the complaint clearly reveals
the existence of a meritorious affirmative defense.”)
(citation omitted); 5B Charles A. Wright & Arthur R.
Miller, Fed. Prac. & Proc. § 1357 (3d ed. 2004)
(“A complaint showing that the governing statute of
limitations has run on the claim is the most common situation
in which the affirmative defense appears on the face of the
pleading, ” rendering dismissal appropriate).